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21st Annual Federalist Society Faculty Conference

January 3 — 4, 2019
Hilton New Orleans Riverside
2 Poydras St
New Orleans, LA 70130

The 21st Annual Federalist Society Faculty Conference took place on January 3-4, 2019 in New Orleans, LA. The conference was part of the official AALS Annual Meeting, and our events and speakers were cross-listed in the AALS Annual Meeting Program. 

The conference featured panels on substantive due process, tech privacy and data security, and antitrust. The winners of our Young Legal Scholars Paper Competition presented their papers, and various other attendees invited feedback on works they have in progress. Our annual luncheon debate addressed qualified immunity.

Videos from the conference are now available on the agenda tabs.

 

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8:30 a.m. - 8:45 a.m.
Welcome
Hilton New Orleans Riverside - Compass, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Description

  • Hon. Lee Liberman Otis, The Federalist Society
  • Incoming AALS President Vicki C. Jackson, Harvard Law School

Speakers

8:45 a.m. - 10:15 a.m.
Panel: Who's Afraid of Substantive Due Process?: Original Meaning and the Due Process of Law

21st Annual Federalist Society Faculty Conference

Topics: Constitution • Due Process • Fourteenth Amendment • Philosophy
Hilton New Orleans Riverside - Compass, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Event Video

Description

Conventional wisdom holds that the original meaning of the "due process of law," as used in the Fifth and Fourteenth Amendment, is procedural - forbidding deprivations of life, liberty or property without appropriate procedural safeguards and unless they are pursuant to a duly enacted law governing the conduct giving rise to the deprivation.  Recent originalist scholarship, however, calls this view into question, arguing that a thicker and indeed "substantive" understanding of due process is justified by a careful reading of the constitutional text and history. This panel will explore and critique these new arguments.

Featuring:

  • Randy Barnett, Georgetown University Law Center
  • John Harrison, University of Virginia School of Law
  • Nathan Chapman, University of Georgia School of Law
  • Ryan Williams, Boston College Law School
  • Moderator: Christina Mulligan, Brooklyn Law School

Speakers

10:30 a.m. - 11:45 a.m.
7 Minute Presentations of Works in Progress Panel 1-B

21st Annual Federalist Society Faculty Conference

Topics: Administrative Law & Regulation • Constitution • Financial Services • Labor & Employment Law • Property Law • Supreme Court • Intellectual Property
Hilton New Orleans - Steering, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Featuring:

  • Kevin Douglas, George Mason University Antonin Scalia Law School: “Missing the Role of Property in the Regulation of Insider Trading”
  • Matthew Festa, South Texas College of Law Houston: “A Property-Rights Approach to Progressive Land Use”
  • Michael Lewyn, Touro College Fuschberg Law Center: “In Defense of the American Community Survey”
  • Barbara Mouly, Liberty University School of Law: “Arbitration Agreements in Nursing Home Admission Contracts”
  • Andrew Schwartz, University of Colorado Boulder Law School: “Mandatory Disclosure in Primary and Secondary Markets”
  • Saurabh Vishnubhakat, Texas A&M University School of Law: “Renewed Efficiency in Administrative Patent Revocation”
  • Moderator: Daniel Kelly, Notre Dame Law School

Speakers

10:30 a.m. - 11:45 a.m.
7 Minute Presentations of Works in Progress Panel 1-A

21st Annual Federalist Society Faculty Conference

Topics: Constitution • Criminal Law & Procedure • Election Law • Supreme Court
Hilton New Orleans - Compass, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Featuring:

  • Jeffrey Addicott, St. Mary’s University School of Law: “The Trump Travel Ban: Rhetoric v. Reality”
  • Paul Baier, Louisiana State University Law School: “Frankfurter-Wiener Letters”
  • Evan Bernick, Georgetown University Law Center: "Decision Under Constitutional Uncertainty"
  • Chad Flanders, Saint Louis University School of Law: “What Makes the Death Penalty Arbitrary (And Does It Matter If It Is?)”
  • Tara Leigh Grove, William & Mary Law School: “Is the Supreme Court Still Legitimate?”
  • Derek Muller, Pepperdine University School of Law: “Weaponizing the Ballot”
  • Moderator: James Stoner, Louisiana State University

Speakers

12:00 p.m. - 2:00 p.m.
Luncheon Debate: Resolved: The Supreme Court Should Overrule Qualified Immunity

21st Annual Federalist Society Faculty Conference

Topics: Criminal Law & Procedure • Supreme Court
Hilton New Orleans - River, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Event Video

Description

Featuring:

  • William Baude, University of Chicago Law School
  • Christopher Walker, The Ohio State University Moritz College of Law 
  • Moderator: Tara Leigh Grove, William & Mary Law School

Speakers

2:15 p.m. - 4:15 p.m.
Young Legal Scholars Paper Presentations

21st Annual Federalist Society Faculty Conference

Topics: Administrative Law & Regulation • Constitution • Criminal Law & Procedure • Due Process • Financial Services • Founding Era & History • Philosophy • Property Law • Supreme Court
Hilton New Orleans - Compass, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Event Video

Description

Featuring:

  • Vince Buccola, University of Pennsylvania, The Wharton School: “The Logic and Limits of Municipal Bankruptcy”
  • Paul Crane, University of Richmond School of Law: “Incorporating Collateral Consequences into Criminal Procedure” 
  • Jennifer Mascott, George Mason University Antonin Scalia Law School: “The Ratifiers’ Theory of Officer Accountability”
  • Lance Sorenson, Utah Office of the Attorney General: “The Hybrid Nature of the Property Clause: Implications for Judicial Review of National Monument Reductions”
  • Lael Weinberger, University of Chicago JD/PhD Candidate: “Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures”
  • Ilan Wurman, Arizona State University Sandra Day O’Connor College of Law: “The Origins of Substantive Due Process”
  • Commenter: Richard Epstein, NYU School of Law, University of Chicago Law School 
  • Moderator: Larry Alexander, University of San Diego School of Law

Speakers

4:30 p.m. - 6:15 p.m.
Panel: Social Media and Freedom of Speech

21st Annual Federalist Society Faculty Conference

Topics: Free Speech & Election Law
Hilton New Orleans - Compass, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Event Video

Description

Over the past year, there have been a number of discussions about social media and freedom of speech.  Some critics blame social media companies for inadequately monitoring their content and promoting “fake news” at the instigation of foreign governments.  Others criticize these companies’ new algorithms or content mediation policies, revised in some instances to respond to the first set of criticisms, as aimed at or disadvantaging certain sets of views.  Meanwhile one leading tech company fired an employee for expressing views on the reasons for the company’s lack of gender diversity on the company’s listserv that were then published widely and condemned on social media on the ground that the views were offensive and could be seen as creating a hostile work environment.

What kinds of responsibility do/should social media companies have for what is published on their sites?  To what extent should this be determined by the companies themselves?  By the market?  By a body of outside experts?  By government regulation?

Featuring:

  • Justin (Gus) Hurwitz, Nebraska College of Law (moderator and panelist)
  • Richard Epstein, NYU School of Law, University of Chicago Law School
  • J.S. Nelson, Villanova University Charles Widger School of Law
  • Hannibal Travis, Florida International University Law School
  • Aaron Wright, Benjamin N. Cardozo School of Law

Speakers

6:15 p.m. - 7:15 p.m.
Reception

21st Annual Federalist Society Faculty Conference

Hilton New Orleans - River, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Co-Sponsored with the Institute for Humane Studies

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8:30 a.m. - 9:00 a.m.
Breakfast

21st Annual Federalist Society Faculty Conference

Hilton New Orleans - Compass, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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9:00 a.m. - 10:45 a.m.
Panel: The Revived Debate About Antitrust

21st Annual Federalist Society Faculty Conference

Topics: Corporations, Securities & Antitrust • Supreme Court
Hilton New Orleans - Compass, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Event Video

Description

There have been renewed challenges to the Chicago School framework for antitrust law. Some have argued that it fails to address growing inequality among people and concentration among industries.  In cases like Ohio v. American Express,  the Supreme Court appears more divided on the application of its principles. This panel will discuss these important developments.

Featuring:

  • Einer Elhauge, Harvard Law School
  • Harry First, New York University School of Law
  • Justin (Gus) Hurwitz, Nebraska College of Law
  • Moderator: Thomas Arthur, Emory University School of Law

Speakers

11:00 a.m. - 12:15 p.m.
7 Minute Presentations of Works in Progress Panel 2-B

21st Annual Federalist Society Faculty Conference

Topics: Administrative Law & Regulation • Civil Rights • Constitution • Environmental & Energy Law • Security & Privacy • Supreme Court
Hilton New Orleans - Steering, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Description

  • Nadia Ahmad, Barry University School of Law: “Energy for Metropolis”
  • Juscelino Colares, Case Western Reserve University School of Law: “Turxit: The Tariff-Leverage Case for Turkey’s Shift from Customs Union to FTA”
  • Ryan Holte, University of Akron School of Law: “The Cycle of Obviousness” (with Ted Sichelman)
  • Gus Hurwitz, University of Nebraska College of Law: “The Self-Regulatory Solution to Data Security and Privacy Regulation”
  • Jennifer Huddleston Skees, Mercatus Center at George Mason University: “Disrupting Deference for Disrupting Technology”
  • Stephen Ware, University of Kansas School of Law: “Paternalism or Gender-Neutrality?
  • Moderator: Kristen Osenga, University of Richmond School of Law

Speakers

11:00 a.m. - 12:15 p.m.
7 Minute Presentations of Works in Progress Panel 2-A

21st Annual Federalist Society Faculty Conference

Topics: Administrative Law & Regulation • Civil Rights • Constitution • Education Policy • First Amendment • Fourteenth Amendment • Religious Liberty • Supreme Court
Hilton New Orleans - Compass, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Description

  • Bradley Areheart, University of Tennessee College of Law: "The Headwinds and Tailwinds of Equality"
  • Stephanie Barclay, BYU J. Reuben Clark Law School: "The Meaning of the Establishment Clause: A Corpus Linguistics Analysis"
  • Nathan Chapman, University of Georgia School of Law: “Missionaries, Indians, and the Bounds of Constitutional Imagination”
  • Enrique Guerra-Pujol, University of Central Florida College of Business: “Bayesian Stare Decisis”
  • Donald Kochan, Chapman University Fowler School of Law: “The Framing Effects of Labeling Constitutional Products”
  • Earl Maltz, Rutgers Law School: “The Original Meaning of the Fourteenth Amendment and the Right of Access to Public Education”
  • George Mocsary, Southern Illinois University School of Law: “Administrative Browbeating”
  • Moderator: Kurt Lash, University of Richmond School of Law

Speakers

3:30 p.m. - 5:30 p.m.
Panel: Scholarly Rigor and Intellectual Orthodoxy

21st Annual Federalist Society Faculty Conference

Topics: Education Policy • Philosophy
Hilton New Orleans - Compass, Riverside Complex
2 Poydras St
New Orleans, LA 70130

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Event Video

Description

This panel will focus on questions of academic rigor and intellectual orthodoxy in modern American law schools.  What is the role of academic rigor in legal scholarship and education?  To what extent can it coexist with an intellectual orthodoxy? Is there an intellectual orthodoxy in American law schools? When does an orthodoxy reflect accumulated wisdom, and when does it reflect unexamined assumptions? Does it matter if the orthodoxy has a political valence?

Featuring:

  • William Baude, University of Chicago Law School
  • Erwin Chemerinsky, Berkeley Law School
  • Joshua Kleinfeld, Northwestern Pritzker School of Law
  • Erin O'Hara O'Connor, Florida State University College of Law
  • Moderator: Thomas Lee, Fordham University School of Law

Speakers

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